High Court allowed a civil revision petition to set aside the dismissal of an application for additional evidence, directing the trial court to permit cross-examination of affidavited witnesses subject to costs.
Order dated 19.07.2011 set aside; plaintiffs granted opportunity to produce witnesses subject to payment of Rs.1000/- as costs.
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Civil Revision No. 5607 of 2011 --1--
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Civil Revision No. 5607 of 2011 Date of decision. 15.09.2011
Hari Om and others
....... Petitioners
Versus
Ram Chand and others
...... Respondents
CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK
Present: Mr.Adarsh Jain, Advocate for the petitioners.
Vijender Singh Malik, J.
This is a petition brought under Article 227 of the Constitution of India by the plaintiffs for setting aside the order dated 19.07.2011 passed by learned Additional Civil Judge (Sr. Divn.), Hodal, vide which the application for additional evidence was dismissed.
I have heard Mr. Adarsh Jain, learned counsel for the petitioner and have gone through the documents placed on the file.
It is a case with unusual facts. No new witness is sought to be examined in the additional evidence. The prayer in the application made before learned Additional Civil Judge (Sr. Divn.), Hodal has been that the permission may be granted to put Davesh and another witness in the witness box and the other party may be directed to cross-examine them.,
It is a case where Davesh and another witness were put in the witness box and their examination -in-chief was recorded by way of affidavits. They could not be cross-examined on that dat for inability to do
Civil Revision No. 5607 of 2011 --2--
so on the other side. Thereafter they did not appear in the court and the evidence of the plaintiff was closed.
Learned Additional Civil Judge (Sr. Division), Hodal has dismissed the application on two grounds. The first is that the application suffers from delay and latches and the second is that the application is devoid of merit as the order dated 05.08.2008 has become final and a right stands created in favour of the defendants. Additional evidence is applied during the pendency of the suit and I fail to understand how the application could be dismissed on the ground of delay or latches. I also fail to understand as to what right has accrued to the defendants for the fact that the two witnesses were not cross-examined. The court is there to do justice between the parties. It cannot be said that the plaintiffs did not want to examine Davesh and another witness. For their failure to call them for cross-examination at the relevant time, they can be burdened with costs.
In these circumstances, the revision petition is allowed. The order dated 19.07.2011 is set aside and learned trial court is directed to give one more opportunity to the plaintiffs to produce the witnesses, whose examination-in-chief has already been recorded, subject to payment of Rs.1000/- as costs, to be paid to the respondents.
(VIJENDER SINGH MALIK) JUDGE
15.09.2011 dinesh
2 issues framed by the court
Whether the Additional Civil Judge erred in dismissing the application for additional evidence on grounds of delay.
Whether plaintiffs could be permitted to examine witnesses whose examination-in-chief was recorded via affidavits despite failure to cross-examine them earlier.
Hari Om and others
Ram Chand and others
Vijender Singh Malik
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
